The Divided Bench: Lack of consultation prompts Justice KK Sonawane of Bombay HC to dissent with Senior Judge on same bench

The Divided Bench: Lack of consultation prompts Justice KK Sonawane of Bombay HC to dissent with Senior Judge on same bench

Omkar Gokhale

In an interesting development, Justice KK Sonawane of the Bombay High Court strongly dissented with a Senior Judge presiding over the same Division Bench while dealing with pleas alleging misappropriation of public funds in road repair works.

In doing so, Justice KK Sonawane passed a dissenting judgment on October 3, calling it an outcome of a “lack of consultation and coordination”.

Justice Sonawane also noted that the judgment rendered in the same case by Justice TV Nalawade of the Aurangabad Bench of the Bombay High Court was made in a “very cryptic” and “obscure manner” by simply declaring that “both petitions are allowed”.

While Justice Nalawade, the Senior Judge, had allowed the pleas on September 18, Justice Sonawane took an opposite view and noted,

“This is a glaring example of lack of coordination, lack of consultation, deliberation or discussion on the matter-in-issue amongst the judges of this Division Bench (TV Nalawade and KK Sonawne JJ) prior to the pronouncement of judgment into the matter pending for adjudication on merit.”

A Division Bench was hearing a plea by Prashant Bamb, a member of the State Legislature who had alleged fraud and mischief in renewal and repair works of the Kalyan-Ahmednagar-Parbhani-Nanded-Nirmal Road allotted to the contractor M/s GG Constructions.

Justice Sonawane noted that the points of controversy in both the pleas are centered on the question of initiation of criminal cases of forgery, misappropriation of public funds, and fraud against the miscreants, including the personnel of the Public Works Department (PWD).

The petitioner had alleged that the contractor, in connivance with the office personnel of the PWD, prepared fake and forged invoices for financial gain. Bamb had sought initiation of criminal proceedings against the accused personnel through the state Anti-Corruption Bureau (ACB).

While dissenting, Justice Sonawane relied on the case of Surendra Singh v State of Uttar Pradesh, in which the mode and manner of writing a judgment and its pronouncement was elaborately discussed by the Apex Court.

Relying on the Surendra Singh case, Justice Sonawane observed that pronouncement of judgment is the first judicial act touching the view/opinion which the Court performs after the hearing.

The Apex Court in Surendra Singh case had noted,

“…After the conclusion of hearing, if the judgment is reserved or the matter is closed for judgment, it is open to the Judges on the Bench to discuss, change their opinions, modify or persuade each other to take a particular view until a judgment is made ready, signed and pronounced in the open court. Once that is done, it becomes the operative pronouncement of the Court.”

In view of the Surendra Singh case, Justice Sonawane observed,

Unfortunately, in the instant petitions, there was no occasion for such deliberation or discussion on merits of the matter for a tentative conclusion.”

In light of this, he went on to note that the petitions were kept reserved for judgment since August 28 this year. Justice Sonawane said that the petitions were listed for September 18, without giving any prior intimation to him. He stated,

I did not receive any opportunity to go through the contents of the Judgment authored by Senior member of the Bench, Justice TV Nalawade, nor the draft of the same was forwarded to me for perusal.”

Justice Sonawane further submitted that he had raised an objection at the time of pronouncement of the judgment by Justice TV Nalawade, and that he had refused to sign it.

“The judgment was pronounced in such a post-haste manner that I could not avail the opportunity to express my dissent view/opinion at that time. Thereafter, the judgment of petitions was placed before me for signature in the evening hours in my chamber.”

Commenting on the details of the case, the dissenting judge further mentioned that he was “aghast” on perusing the judgment rendered by the Senior Judge.

He disagreed with the views expressed in the September 18 judgment about the functions of government personnel, the specific directions to the ACB on permission for investigation and to the police for investigation against public servants of the PWD.

In this regard, Justice Sonawane observed,

According to me, all these are not legally permissible by exercising writ jurisdiction under Article 226 of the Constitution of India. In case, such directions are issued to investigating agency, it would amount to cause interference in the investigation. These circumstances did not persuade me to share the responsibility of alleged findings expressed by Senior Member of the Bench. Therefore, I refused to put my signature on the Judgment authored by him and kept reserved my legitimate right to dissent view/opinion within the ambit of law.”

According to petitioner Prashant Bamb, it was mandatory for the contractor GG Constructions to procure bitumen required for renewal or repair of the roads from government-owned Hindustan Petroleum Corporation Limited HPCL.

Special Counsel VD Sapkal for the authorities argued that the alleged work was carried out in 2012-13 and at such a belated stage, the objections were raised to blame the office personnel.

Public Prosecutor AB Girase submitted that inquiry was initiated by the concerned department and First Information Reports (FIRs) were lodged in 2018 and 2019. It is for the concerned Investigating Officers to find out real culprit into the matter, the state government argued.

After perusing material on record, Justice Sonawane observed,

It would be unjust and improper to give any sort of direction to IO for investigation in a particular manner against particular Government officials. In case such directions are issued, it would amount to interference in the investigation, which is absolutely not permissible under the law. The matter is in the investigation stage and it would be fallacious to draw adverse inference against PWD officials for their involvement.”

Justice Sonawane went on to observe that the investigation in the present case is at an initial stage and that there are no allegations of malafide against the investigation agency.

In light of this, he dismissed the pleas, holding that the very purpose of filing the same is satisfied since the investigation is ongoing.

Parting with the pleas, Justice Sonawane directed the investigation agency to conduct a probe into the crime in a fair, prompt, and unbiased manner.

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